Don Hendrickson v. Arkansas State Highway Commission
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
ROBERT J. GLADWIN, JUDGE
DIVISION III
CA061062
DECEMBER 12, 2007
DON HENDRICKSON
APPELLANT
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. CV200169]
V.
ARKANSAS STATE HIGHWAY
COMMISSION
APPELLEE
HON. DAVID L. REYNOLDS,
JUDGE
AFFIRMED
Appellant Don Hendrickson appeals the Faulkner County Circuit Court’s grant of the
motion in limine filed by appellee Arkansas State Highway Commission regarding the
limitation of testimony related to the permanent easement on his land and impairment of
public access to his business interests. We affirm.
In 1983, appellant purchased two tracts of land, the north boundary of which abutted
State Highway 286. At the time of purchase, the highway was a twolane road without
curbs. Appellant’s tracts were separated by Duwayne Lane, a public deadend street, with
ingress and egress existing only by way of the highway. On the east tract stood a frame
dwelling, while on the west tract stood a brick residence and a combined selfservice gas
station and convenience store.
In 2001, appellee filed an eminent domain complaint condemning the north portion
of each of appellant’s tracts of land to widen the highway to two lanes running both east and
west with a median separating the lanes. An eight to teninch curb was built on the edge of
the new right of way along the entire north line of appellant’s property, with a greenspace
area left between the new curb and the curb marking the outside line of the eastwardtraveled
portion. Appellant filed a timely answer seeking just compensation for the land taken and
severance damage to his residual lands, particularly as related to the business property
located on his land. Prior to appellee’s action, appellant had three means of ingress and
egress from his two tracts of land, all of which afforded unimpaired and direct access from
the highway to his conveniencestore business, gas station, and parking area, irrespective of
whether motorists were traveling east bound or west bound.
Subsequent to the new construction, appellant’s previous access was diminished
except for the entrance to Duwayne Lane and the substituted cut in the median at the west
end of the property. Appellant contends that this route requires vehicles traveling west
bound to drive into the cut in the median, turn left across both eastbound lanes of traffic and
enter the permanent construction easement on the property of appellant’s neighbor and make
a sharperthanninetydegrees turn to the left onto the easement imposed on appellant’s
property.
2
CA061062
On the day of the jury trial, April 11, 2006, appellee filed a fivepage motion in limine
just prior to the beginning of the trial. The circuit court held three in camera hearings to
discuss the motion, focusing primarily on appellee’s attempt to prevent appellant and his
expert witness from discussing or testifying concerning the use of the permanent easement
imposed by appellee on the land and testimony relating to the impairment of public access
to appellant’s business and land. Appellant argued against any such limitation of evidence
and explained that the construction of the median and the limited and dangerous access
through the crossover was a gross inconvenience and seriously impaired the public access
to his business.
The circuit court granted the motion in limine with respect to these two points, after
which the trial proceeded with the jury granting a judgment in favor of appellant in the
amount of $50,000. The judgment was filed on May 30, 2006, and appellant filed a timely
notice of appeal on June 22, 2006. He specifically challenged the circuit court’s ruling
granting the motion in limine, paragraph No. 7, whereby the circuit court denied his attempts
to introduce evidence regarding the use of the permanent easement impressed upon his land.
He also appealed the ruling related to paragraph No. 8, which denied his attempts to
introduce evidence, the proffer of which was made, to prove compensation for the loss of
access to his remaining property which resulted from the configuration and construction of
Dave Ward Road in front of appellant’s property.
A. Limitation of Evidence Regarding Permanent Easement Imposed by Appellee
3
CA061062
Appellant asserts that by granting appellee’s motion, which prevented him from
introducing evidence in any form concerning the use of the permanent easement imposed on
the property by appellee, the circuit court erroneously prohibited him from explaining to the
jury the means of access to his land by his customers, his renters, and his family. He claims
that the ruling, itself, constituted a taking of the limited access appellee had left him. Article
2, Section 22, of the Arkansas Constitution states that “The right of property is before and
higher than any constitutional sanction; and private property shall not be taken, appropriated
or damaged for public use, without just compensation therefore.” Appellant cites Arkansas
State Highway Commission v. Kesner, 239 Ark. 270, 388 S.W.2d 905 (1965), as an example
of when the supreme court has acknowledged, even in the absence of an actual loss of land,
“a basic right of an abutting property owner, for the right of access to a street or highway [as]
one of the incidents of ownership or occupancy of land abutting thereon.” See also Ark.
State Hwy. Comm’n v. Billingsley, 247 Ark. 49, 444 S.W.2d 259 (1969) (finding that there
was substantial evidence establishing considerable damage of ingress or egress despite a
technical ability to access seventyfeet of usable frontage). Accordingly, appellant requested
compensation not only for the actual taking, but also for the damage done to the property not
taken but nonetheless substantially impaired or damaged.
Appellant acknowledges that in Wright v. Monticello, 345 Ark. 420, 47 S.W.3d 851
(2001), the supreme court referred to language from Campbell v. Arkansas State Highway
Commission, 183 Ark. 780, 38 S.W.2d 753 (1931), reiterating that in order for a property
owner to challenge a governmental action that is not an actual taking of his property, he must
4
CA061062
suffer damages that are distinct from those suffered by the general public. However, the
supreme court went on to specifically explain that a property owner whose land abuts the
land being taken by the government and who has a property right of egress and ingress
through such land suffers a distinct injury not suffered by the general public. See Wright,
supra. Accordingly, appellant maintains that the circuit court’s ruling prohibited him from
offering proper testimony regarding the damage to his tracts of land and wrongfully denied
him the use of the supporting information that the state constitution and case law afford him.
Appellant points out that, because of the circuit court’s ruling, he did not attempt to
introduce testimony regarding the loss of and/or extreme limitation of his access to his
property. He and his primary witness regarding the value of the property, Ms. Diana
Thompson, were both aware of the circuit court’s admonition and attempted to comply with
those terms. He claims the circuit court erroneously denied his right to go forward with
evidence needed to prove his damages, which prejudiced his case, and that such error is
reversible error warranting a new trial.
Appellee counters that appellant did, in fact, testify regarding the permanent
easement, and the record contains approximately twentyseven pages of direct testimony and
four additional pages of crossexamination and redirect testimony. Appellant was able to
provide details regarding the physical changes to the property and the resulting alterations
to the entrances to his property, as well as specific testimony regarding monetary damages
he claims to have suffered as a result. Appellee points out that appellant addressed the
easement, his complaints against those individuals and government entities involved in the
5
CA061062
process of planning the improvements, the effect the improvements had on traffic patterns
related to his property, and his resulting damages. Appellee asserts, and we agree, that
appellant was able to present a substantial amount of information on this issue to the jury.
Appellant himself acknowledges that appellee allowed him to testify to such an extent
that, “upon proper objection by [a]ppellee, much of [appellant’s] testimony might have been
denied.” He simply contends that there was much more that he would have said absent the
circuit court’s ruling. Appellant has failed to show how he was prejudiced by the ruling,
what the other testimony would have been, or how the result would have differed if the
additional information had been allowed. Moreover, it appears that the real focus of the
potential testimony that was excluded was hearsay testimony about appellant’s employees’
difficulties using the road in its new condition, and that limitation certainly was not error.
We affirm on this point.
B. Limitation of Evidence Related to the Construction of the Median
Appellant asserts that the circuit court erroneously required proof of an absolute,
complete denial of all access to appellant’s property before any testimony would be
permitted regarding damages to the remainder of his property. He explains that, as opposed
to the previously unfettered access he enjoyed, the one remaining point of access to his
property requires a person desiring to use the access to pull up into a space in the median,
watch for eastbound traffic in a fiftymileperhour posted speed zone, and when clear, drive
across the eastbound lanes and onto a permanent construction easement on the land of
appellant’s neighbor to the west, then make an acuteangle turn and proceed eastward along
6
CA061062
a narrow easement on appellant’s land to the convenience store, or continue west on the
highway some 800 or more feet to Salem Road and make a Uturn to come back to that
easement.
Appellee argued at the hearing that the taking of access may be an impairment but
does not constitute a denial of access, and that in a partial taking of land, the landowner is
not entitled to compensation for the impairment of access if any access whatsoever remains
for the landowner. Again, appellant cites Campbell, supra, for the proposition that any
damage to such an easement, whether by destruction or impairment, is a damage to the
property owner and independent of any damage sustained by the general public. Likewise,
in Kesner, supra, the supreme court stated that a landowner must show that a property right
has been invaded, and direct and substantial damage peculiar to him must be sustained, in
order to establish special compensatory damages. The fact that the value of the lot has been
diminished is not sufficient to sustain an award.
Appellant cites Arkansas State Highway Commission v. Bowers, 248 Ark. 388, 451
S.W.2d 728 (1970), in which the supreme court allowed witnesses to testify as to the loss of
access as an element of damage. See also Ark. State Hwy. Comm’n v. Cottrell, 9 Ark. App.
359, 660 S.W.2d 179 (1983) (finding that the rule that circuitry of travel is not compensable
when a land owner whose land is not being taken claims that he is entitled to damages); Ark.
State Hwy. Comm’n v. Coffman, 251 Ark. 590, 473 S.W.2d 873 (1971) (allowing evidence
of the inconvenience of a partial taking to be considered in assessing a landowner’s
damages).
7
CA061062
Appellant asserts that his efforts to establish the severance damages to the remainder
of his property, which consisted of a service station, meat market, convenience store, his
dwelling, and rental property, was thwarted by the hearing and resulting ruling on the motion
in limine. He claims that his severance damages materially exceeded the jury award, and that
access of westbound traffic is substantially hampered in the effort to patronize his
businesses. Appellant argues that it was clear error for the circuit court to restrict, or
essentially deny, testimony regarding the new limitations imposed on his ingress and egress
to the property. While acknowledging that access to the property was not completely denied,
appellant asserts that the only new way to reach his property is dangerous, restrictive, and
inconvenient.
Appellee again alleges, and we agree, that appellant freely testified about this issue
at trial. Alternatively, appellee contends that the circuit court’s ruling excluding evidence
that the median strip down the center of the new road was an element of damages that must
be considered was not error. Appellee asserts that it is well settled that public authorities
may erect a median strip down the center of a thoroughfare or may in some other manner
prohibit left turns or twoway traffic without compensating the abutting landowner for his
inconvenience or for the loss of business that results from the flow of traffic. See Ark. State
Hwy. Comm’n v. Bingham, 231 Ark. 934, 333 S.W.2d 738 (1960); City of Ft. Smith v. Van
Zandt, 197 Ark. 91, 122 S.W.2d 187 (1938). Although the rulings in these cases dealt with
the factual considerations of those specific cases, which appellant claims differ “vastly” from
the facts in the instant case, we find merit in appellee’s argument on this point. Appellant
8
CA061062
was ultimately allowed to present a significant amount of testimony on these issues, and we
hold that he has failed to demonstrate prejudice in not being allowed to present more
evidence, what that additional evidence would have entailed, or that it would have changed
the outcome of the case. Accordingly, we affirm on this point as well.
Affirmed.
GRIFFEN, J., agrees.
HART, J., concurs.
HART, J., concurring. I agree that this case must be affirmed; however, I disagree that
we should dispose of this case simply because Mr. Hendrickson was able to present evidence
that appeared to circumvent the Highway Commission’s motion in limine. The majority is
correct when it states that Hendrickson was not prejudiced by the paucity of the evidence that
he was allowed to present at trial. There was enough evidence presented to warrant an
instruction on the loss of access, had the trial court not found in granting the motion in limine
1
that it was not compensable.
Mr. Hendrickson was, however, prejudiced by what I believe was an improper use of
a motion in limine to preclude him from asserting a theory of recovery based on the loss of
access to his property. It is settled law that it is impermissible to use motions in limine as
1
I believe that Mr. Hendrickson’s second point would be unavailing under any
circumstance. In Arkansas Highway Commission v. Bingham, 231 Ark. 934, 333 S.W.2d
728 (1960), the supreme court decided that as a matter of public policy that the
diminution in access to a business by the creation of a divided highway would not be
compensable in condemnation actions.
9
CA061062
a sweeping means of testing issues of law. Turner v. Northwest Ark. Neurosurgery Clinic,
P.A., 84 Ark. App. 93, 133 S.W.3d 417 (2003) (citing Schichtl v. Slack, 293 Ark. 281, 737
S.W.2d 628 (1987)). Nonetheless, I must acknowledge that Mr. Hendrickson’s argument on
appeal did not assail the propriety of granting the motion in limine as a means of foreclosing
one theory of recovery. Accordingly, this case must be affirmed.
10
CA061062
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.